Prostitution Canada law appeal favourable

Sex-trade workers now able to take their trade indoors and hire protection

Stephanie Simko

The ruling that could’ve ended prostitution-related prosecutions in Canada has weighed in from Ontario’s top courts with favourable results. The Appeal Court was contemplating whether or not current laws regarding brothels, solicitation, and living off sex-trade work are constitutional.

Though prostitution itself is not illegal in Canada, many of the activities involved in the sex-trade business are banned within the criminal code. Ontario Superior Court Justice Susan Himel ruled in September 2010 that three provisions of the Criminal Law – which stated the illegality of brothels, communicating in public for the purpose of engaging in prostitution, and living off the avails of sex work – should be stuck down to ensure the safety of sex-trade workers.

The government appealed her decision and the next ruling will be from the Ontario Court of Appeals. The landmark judgement released on Monday agreed with the decriminalization of brothels and living off the avails of prostitution. Supporters and critics of the law argued that legalization of the three aspects would have the potential to save women from predators such as Robert Pickton, a convicted murderer of six Vancouver prostitutes.

“My initial response to this decision is that it will likely go to the Supreme Court before we have any sort of final resolution to the current debate about these laws,” says Vanessa Lucky, Lakehead sociology graduate students whose research revolves around prostitution and the law. “However, if they do not, I think that these changes have potential to make things safer for those who are able to work indoors.”

The Ontario court plans to strike the word “prostitution” when re-defining “common bawdy-house” as it applies to Section 210 of the Criminal Code, which otherwise prevents prostitutes from offering services out of indoor locations such as brothels or their homes.

However, the court said the bawdy-house provisions would not be declared invalid for 12 months, so that Parliament can have a chance to draft Charter-compliant provisions to replace them, if it chooses to do so. The changes to the “living-off-the-avails” provision will not come into effects for 30 days.

Lucky hopes that constitutionality of the communication provision is also reconsidered.

“Many academics rightfully speculate that this solicitation provision forces sex workers operating outdoors to work alone in more secluded areas, which significantly decreases their safety. It’s important to remember that the court did conclude that this specific provision was deemed unconstitutional by the Supreme Court in the 1999 Prostitution Reference decision.

“Both Himel and the court of appeal find the same thing. The reason that it is being kept in place is that the Supreme Court in 1999 and the Appeal Court have also ruled that this violation of fundamental rights and freedoms is justifiable in a free and democratic society.”

Lawyer Alan Young, who represented the three women who brought forward the application to have the provisions declared unconstitutional, says the appeal court’s decision had ushered in a “new era” for sex workers.

“They may not have gone as far as the Superior Court judge, but when you actually look at the result, they’ve done the right thing in terms of modifying the law so that sex workers will not face the same risks they face on a daily basis.”